What does it mean to contest a divorce, and why might someone choose to take this step? In the UK there is a short list of criteria that, if met, may mean you can contest a divorce application made by your spouse. Here is what you need to know when considering whether or not you could contest a divorce.
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Can I contest a divorce?
A divorce or civil partnership dissolution can be challenged on the basis of:
- Jurisdiction – see a more detailed explanation in the section below.
- If you can prove the marriage/civil partnership was never valid. This could happen if the marriage/civil partnership had not been conducted within the law of the country you married in, for example, and you have therefore not entered into a legally valid marriage/civil partnership.
- If the marriage/civil partnership has already legally ended. This might be the case if the marriage/civil partnership was legally ended by proceedings in another country, for example.
These are the only grounds on which you can challenge a divorce application. Although, in rare circumstances, it will also be possible to challenge proceedings for reasons such as fraud and/or procedural issues.
The applicant (the spouse who applied for the divorce) will have told the court stating that the courts of England and Wales have jurisdiction over the divorce because at least one spouse lives in England or Wales. If the other spouse disputes this is the case, they may be able to contest the divorce. The definition of whether a spouse lives in or is sufficiently connection to England or Wales is broekn down in more detail below:
- Habitual Residence: if your life is mainly based in England or Wales, you are what is known as ‘habitually resident’ in those countries. This could include working, owning property, having children in school, and your family life taking place in England or Wales. This is not an exhaustive list of what constitutes habitual residence, and even though some of them may apply to your situation, it does not mean you are habitually resident.
- Domicile: your domicile is typically the place you are born, regard as your permanent home and to which you have the closest ties. However, domicile can be more complex if you or your parents have moved countries in the past.
When you are born, you automatically gain a domicile of origin. This tends to be the country your father considered his permanent home if your parents were married and/or the country your mother considered her permanent home if your parents were not married, or your father has died.
If you leave your domicile of origin and settle in another country as an adult, the new country may become your domicile of choice.
You may decide to challenge the divorce application on the basis of jurisdiction where neither party lives in or has any other connection with England or Wales, for example.
If you decide to challenge the divorce application on one of the limited grounds set out above, you must first complete Form D8B. There is a court fee for making this application. If you cannot pay the court fee, you may be eligible for a fee remission or a reduced fee if you only have a small amount of savings and investments, are in receipt of certain benefits or are on a low income. If so, you must complete Form EX160: Help with Fees to apply.
Completing Form D8B
You must give your full name and address and that of your spouse/civil partner together with the divorce or dissolution case number. You must also provide the ground on which you wish to dispute the application as follows:
- The court’s jurisdiction to entertain the proceedings
- The marriage is not valid
- The marriage has already legally ended
You must also provide comprehensive details as to why you are disputing the particular ground and which order(s) you are requesting:
- Asking the court to dismiss the applicant’s application
- Any other order requested, apart from a costs order, or an application you wish to make for a divorce/dissolution, although this must then be done separately.
If there are any previous or existing court proceedings relating to the marriage/civil partnership or that affect its validity, including any existing or concluded court proceedings overseas, you must give further details, such as:
- Case number(s)
- What it is about
- Names of those involved
- The country where the proceedings took place or are taking place
- Name of the court, tribunal or authority dealing with the proceedings
- Date the proceedings began and dates of any future hearings (if any)
You must also provide a statement of truth, and sign and date the form.
There is very little you can do to dispute a divorce application unless it is on the grounds mentioned above. However, if you decide to challenge the divorce on any of these grounds, you have 21 days to submit your answer in Form D8B from the date of the acknowledgement of service must have been filed, which is 14 days from the date the divorce application was served on you.
If you fail to submit the answer by the deadline, your spouse or civil partner will be able to continue with the divorce or dissolution as if you did not disputed it. The court will accept the divorce application and that the marriage has irretrievably broken down.
Can I disagree with an application without contesting the divorce?
No, you can either dispute the divorce application on the limited grounds as set out above, or let the application run its course to ‘final order’ at which point the couple will be divorced.
Parts of a divorce
There are three stages to most divorces:
- The legal process of getting divorced
- The Child Arrangements: how you will bring up your children whilst living separately
- Financial Arrangements: how you will both meet your future needs and those of any children from the income and assets you have between you.
The application to divorce deals with the first part – the process to legally end your marriage or civil partnership. It is this stage that, on the limited grounds discussed above, a divorce could be disputed. Whereas the second two parts depend on whether you have any children and any assets to share, and if so, whether you can agree as to the children’s care and to the division of your finances. These last two steps can significantly slow down the divorce process if the couple can’t agree, so it is well worth attempting to agree on these points early on in the process.
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